FIRST REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES ST. ONGE (Sponsor), McGHEE, THRELKELD, FAITH, LOEHNER, DEEKEN, KUESSNER, COOPER (120), FLOOK AND MEADOWS (Co-sponsors).
Read 1st time February 20, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To amend chapter 319, RSMo, by adding thereto one new section relating to damage to underground facilities.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 319, RSMo, is amended by adding thereto one new section, to be known as section 319.055, to read as follows:
319.055. 1. As used in this section, the following words shall mean:
(1) "Action", any legal proceeding filed in a court of competent jurisdiction under section 516.120, RSMo;
(2) "Claim", an invoice or other written statement delivered to an excavator by an underground facility owner stating a demand for payment for costs of repair or other damages alleged by an underground facility owner to have resulted from an excavation conducted by the excavator;
(3) "Excavation", any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes, without limitation, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, augering, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, and demolition of structures, except that, the use of mechanized tools and equipment to break and remove pavement and masonry down only to the depth of such pavement or masonry, the use of high-velocity air to disintegrate and suction to remove earth, rock and other materials, and the tilling of soil for agricultural or seeding purposes shall not be deemed excavation. Backfilling or moving earth on the ground in connection with other excavation operations at the same site shall not be deemed separate instances of excavation;
(4) "Underground facility", any item of personal property which shall be buried or placed below ground for use in connection with the storage or conveyance of water, storm drainage, sewage, telecommunications service, cable television service, electricity, oil, gas, hazardous liquids or other substances, and shall include but not be limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments and those portions of pylons or other supports below ground that are within any public or private street, road or alley, right-of-way dedicated to the public use or utility easement of record, or prescriptive easement; except that where gas distribution lines or electric lines, telecommunications facilities, cable television facilities, water service lines, water system, storm drainage or sewer system lines are and such lines or facilities are owned solely by the owner or owners of such property, such lines or facilities receiving service shall not be considered underground facilities for purposes of this chapter; provided, however, for railroads regulated by the Federal Railroad Administration, "underground facility" as used in sections 319.015 to 319.050 shall not include any excavating done by a railroad when such excavating is done entirely on land which the railroad owns or on which the railroad operates, or in the event of emergency, on adjacent land.
2. Notwithstanding any other provision of law to the contrary, any claim for damage to an underground facility allegedly caused by excavation that is brought by an underground facility owner against an excavator shall be delivered to the excavator within ninety days of completion of repairs to the facility and shall in no case be made more than one hundred eighty days after the date the person responsible for the excavation notified the notification center of damage under section 319.045. Any claim not made within the time periods prescribed by this section, or within such other time period as may be agreed upon in writing by the owner and excavator after the occurrence of the damage, shall be barred. If no notice of damage was made by the excavator under section 319.045, or the excavator concealed or attempted to conceal damage to the facility, or made unauthorized repairs to the damaged facility in violation of section 319.045, the limitation of this section shall not apply. If repairs cannot be made within ninety days after the notice of damage by the excavator due to an order or notice of investigation by the Missouri public service commission, the federal Office of Pipeline Safety, or by order of a state or federal court, and if the owner has delivered to the excavator a copy of the order or notice of investigation within such ninety-day period, then the period within which a claim may be delivered to the excavator shall end ninety days after completion of repairs.
3. If an underground facility owner elects to make temporary repairs to facilities allegedly damaged by excavation, the provisions of subsection 1 of this section shall apply separately to a claim for the cost of the temporary repairs and to a claim for the cost of subsequent permanent repairs. The claim for permanent repairs in such case shall not be barred after the one hundred eighty-day period specified in subsection 1 of this section if the claim for temporary repairs was made in compliance with subsection 1 of this section, and the underground facility owner proceeded with reasonable diligence to make permanent repairs, and the claim for permanent repairs was made in writing and delivered to the excavator within ninety days after completion of the permanent repairs.
4. Any claim delivered to an excavator under subsection 1 or subsection 2 of this section shall be paid by the excavator within ninety days after receipt of the claim, or if the claim is disputed by the excavator, in whole or in part, a written statement stating the reason or reasons for disputing the claim shall be delivered by the excavator to the underground facility owner making the claim within ninety days after receipt of the claim. If such written statement disputing the claim has not been delivered to the underground facility owner within ninety days after receipt of the claim, in any subsequent action for collection of the claim, there shall be a rebuttable presumption that the amount claimed is due and owing from the excavator.
5. Any action, as defined in this section, shall be barred unless a claim has been made, as provided by this section.
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